Matot-Masei 5762-2002

“Does the Torah Allow Its Citizens to Take the Law Into Their Own Hands?”

by Rabbi Ephraim Z. Buchwald

In parashat Masei, the second of this week’s double parashiot, Matot-Masei, we encounter an astounding and perplexing law known as Eir Miklat, the city of refuge.

In chapter 35 of Numbers, we read that G-d speaks to Moshe and directs him to tell the people of Israel that when they cross the Jordan and enter in to the land of Canaan they are to establish six cities of refuge where a person who accidentally kills another person must run. Three cities of refuge are to be located on the east side of the Jordan and three on the west side of the Jordan.

The Torah further explains that an accidental killer must run to a city of refuge in order to escape the vengeance of the next of kin, who has the right to kill the perpetrator if he catches him before he enters the city. In Numbers 35:25, we learn that the accidental killer who succeeds in reaching the city must remain in the city of refuge until the death of the High Priest. Upon the death of the High Priest, he may exit the city and return to his home to resume a normal life.

This particular portion raises many weighty questions. Does the Torah permit a person to take the law into his own hands, allowing the next of kin to pursue and perhaps even kill the accidental murderer? Furthermore, why does the accidental murderer stay in the city of refuge until the death of the High Priest? What does the High Priest have to do with all this? And finally, isn’t this entire issue out of character for the Torah, which in general is so compassionate and protective of human life?

In order to understand the nature of the law of the Eir Miklat, the city of refuge, we need to look into the insights and explanations of the Oral Code, which are found in the Talmudic tractate Makot, and review as well Maimonides’ Laws of Ro’tzay’ach u’shmee’rat ha’nefesh, the Laws of Murderers and Protecting Life.

While the written Torah states that there were to be six official cities of refuge, the Oral Code indicates that an additional 42 Levite cities also served as locations of refuge. Both, the Talmud and Maimonides explain that there were really three categories of accidental deaths. In the first, Shogeg karov l’oh’nes, the accidental death occurred without any negligence on the part of the perpetrator. Such would be the case where an deranged person climbs over the fence of a firing range, runs in front of the target and is killed.

The second category of accidental homicide is known as Shogeg. In this case the accidental death occurs due to petty negligence. Perhaps the rifleman forgot to close the door to the firing range, or the fence had a break in it and a child wandered in and was killed.

The third scenario, Shogeg karov l’may’zid, is a case where there was gross negligence on the part of the perpetrator, e.g. a person shoots wildly in a public area. Even though the shooter did not intend to kill a particular person, the killing is virtually premeditated.

In all three cases, the killers run to the city of refuge. Now the key to understanding this portion is the verse in Numbers 35:12 which reads: “V’ha’yoo lah’hem heh’ah’rim l’miklat mee’go’el,” and these cities shall be as refuge from the redeemer, “V’lo yah’moot ha’ro’tzay’ach, ad om’do lif’nay ha’ay’dah l’mish’pat,” and the killer shall not be put to death until he stands before the congregation for judgment.

In effect, all three killers run to the city of refuge, and presumably, arrive safely. Their arrival is virtually assured since the distances to the cities of refuge were never great, and these particular roads were always kept in excellent repair. In addition, the avenger of blood, the next of kin, cannot really exact vengeance and kill the perpetrator, because he doesn’t know into which particular “accidental” category the perpetrator falls. If the death was truly accidental and there was no negligence, the killer is not at all at fault, and is entitled to go free! In the instance of gross negligence, according to some rabbinic opinions, the killer must stand trial for murder and face the consequences. Only in the case of shogeg, where the death was due to petty negligence, can the killer be put to death by the next of kin. However, as you will see this was also virtually impossible.

All three of the perpetrators are put on trial. In the instance of no negligence, the killer is released. If the court determined that there was gross negligence, the killer is punished. If the death was truly accidental, the killer is accompanied back to the city of refuge by religious guards, who provide protection, and the perpetrator remains in the city until the death of the Cohen Gadol, the High Priest.

Why the High Priest? Because the High Priest represents the chief educational officer of Israel. In effect, the High Priest is in charge of teaching and training the nation, and effectively conveying the uncompromised primacy of the sanctity of human life. In a revolutionary advancement in human ethics, Jewish law proclaims that the occurrence of an accidental death implies that the educational system, for which the Cohen Gadol is responsible, was inadequate. The implications of this revolutionary idea are vast.

Almost parenthetically, the Talmud reports that in order to hasten their release, the “prisoners” in the Cities of Refuge and their families often prayed for the death of the High Priest. The High Priest’s mother, would travel from city to city and try to “bribe” the killers with sweets and food, to convince them not to pray for her son’s harm.

In a fascinating nuance to these laws, the Oral Code states that the teachers or the Rabbis of accidental killers were exiled to the city of refuge together with their student. Furthermore, students as well are exiled to the city of refuge if their teacher were involved in an accidental death. This principle is deduced from the fact that the verse in Deuteronomy 4:42 states: “V’chai,” and he shall run to one of those cities and live, implying that a teacher cannot live without his/her students, and students cannot live without their teacher. A possible further implication is that accidental killers are in desperate need of reeducation, consequently, their teachers need to be at their side.

Once again we learn that the bottom line of all the Torah is the principle of the sanctity of human life. Too often in our society is this value belittled and dismissed, particularly since so many citizens are presumably covered by liability or accident insurance. The Torah, on the other hand, posits that even petty negligence may not be excused, that the accidental killer must be held accountable for his error and undergo rehabilitation. This is accomplished by bringing all the accidental killers together to a city of refuge for the equivalent of “group therapy,” and reeducating them regarding the ultimate value of the sanctity of life.

We see that what seemed to be a primitive law of the Torah, is actually light-years ahead of contemporary legal practices and of modern social philosophy.